Uprooted wild trees, which are replanted after their roots are balled, and are then cultivated for a year before sale, constitute a crop for purposes of the Agricultural Districts Law. The applicant’s land may receive an agricultural assessment, however, only if the farm operation also satisfies the statutory definition of “land used in agricultural production,” that is, if the statutory acreage and gross sales requirements are also met.

We have received an inquiry concerning the agricultural assessment program (Agriculture and Markets Law [AML], Article 25 AA; Real Property Tax Law, § 481). An applicant for the exemption uproots wild trees from the wooded portion of his land, replants them in clearings located in other parts of his property after balling their roots, and, after one year of cultivation, sells the transplanted trees. {1} The question is whether this activity qualifies the land for an agricultural assessment. {2}

In order to receive an agricultural assessment pursuant to AML, section 305(1)(a) or 306(1), land must be “used in agricultural production,” as that phrase is defined by AML, section 301(4). In most situations, such use must involve the “production for sale of crops, livestock or livestock products” (Ibid.). The phrase “crops, livestock and livestock products” is defined by AML, section 301(2) as including: “[h]orticultural specialties, including nursery stock, ornamental shrubs, ornamental trees and flowers” (AML, § 301(2)(d)).

It appears that the applicant’s transplanted trees may constitute “nursery stock” within the meaning of section 301(2)(d), because the applicant seems to be managing the growth of those trees, in preparation for sale, after the trees are replanted in his property’s clearings. {3} In this manner, the applicant’s transplanted tree operation seems to resemble a Christmas tree farm which AML, section 301(2)(f), defines as producing “Christmas trees from a managed . . . tree operation.” {4}

Accordingly, it appears that the property owner’s transplanted trees may be a “crop” for the purposes of the agricultural assessment program. Nevertheless, the applicant’s land may only receive an agricultural assessment if, as previously stated, his farm operation also satisfies the definition of “land used in agricultural production” set forth in AML, section 301(4).

AML, section 301(4), generally requires that an eligible farm must have “not less than seven acres of lands used as a single operation in the preceding two years for the production for sale of crops, livestock or livestock products of an average gross sales value of [$10,000] or more.” Therefore, if the applicant’s farm operation were to qualify for an agricultural assessment solely on the basis of its sale of the cultivated, transplanted trees, the general rule of eligibility would require that the areas within the applicant’s clearings to which those trees are transplanted must have a total acreage of no less than seven acres. In addition, the average gross sales value produced by the sale of those transplanted trees in the two years prior to the filing of the current agricultural assessment application must have amounted to no less than $10,000. Here, it is our understanding that the applicant has cultivated and sold the transplanted trees for no more than one year. Accordingly, it is our opinion that the applicant’s land is not entitled to receive an agricultural assessment solely on the basis of the transplanted trees.

AML, section 301(4), permits an applicant to qualify his land for an agricultural assessment by aggregating the average gross sales value of the various crops, livestock and livestock products the applicant’s farm operation produces for sale. As noted in endnote number two, the applicant harvests timber for sale from his woods and has planted pine tree seedlings in some of his property’s clearings.

AML, section 301(9)(b), limits the annual gross sales value that may be attributed to farm woodland products, including harvested timber, to $2,000. {5} We assume that the applicant’s pine tree seedlings are still immature trees that have not been harvested for sale. Accordingly, it is our opinion that the combined sales value produced by the applicant’s three agricultural activities (that is, cultivating transplanted trees for sale, harvesting lumber from his property’s woods, and planting pine tree seedlings) is insufficient to qualify his land for an agricultural assessment on the 2006 assessment roll. {6}

June 9, 2006Revised August 3, 2006

{1} The assessor advises that the transplanted trees are maple and oak saplings that are approximately six feet in height

{2} The assessor advises that the applicant harvests timber for sale from his woods and has planted pine tree seedlings in some of his property’s clearings.

{3} It appears that the applicant sells the trees to landscaping or nursery businesses or to homeowners.

{4} We note that the Sponsor’s Memorandum for L.1989, c.448, which added AML, section 301(2)(f), states “Christmas trees are agricultural products; they are planted, nurtured, trimmed and harvested just like other agricultural crops.” Prior to the adoption of chapter 448, we construed the category of “nursery stock,” set forth in former section 301(3) of the AML (repealed L.1987, c.774), as not including planted conifer trees whose “primary purpose [is] to produce cones from which conifer seed is extracted” (7 Op.Counsel SBEA No. 107).

{5} The $2,000 limitation for the allowable annual gross sales value that a farmer may claim from farm woodland products was added in 1990 (c.251), and is therefore not discussed in 6 Op.Counsel No. 31, a 1979 opinion regarding woodland products.

{6} We note that there are circumstances when a newly established orchard or vineyard operation may receive an agricultural assessment for up to four years before its fruit trees or vines produce a crop for sale, or for up to five years before its Christmas trees are harvested for sale. Such may be the case when “[l]and of not less than seven acres [is] used as a single operation for the production for sale of orchard or vineyard crops when such land is used solely for the purpose of planting a new orchard or vineyard and when such land is also owned or rented by a newly established farm operation in its first, second or fourth year of agricultural operation” (AML, § 301(4)(i); emphasis added). Such may also be the case when “[l]and of not less than seven acres [is] used as a single operation for the production and sale of Christmas trees when such land is used solely for the purpose of planting Christmas trees that will made available for sale, whether dug for transplanting or cut from the stump and when such land is owned or rented by a newly established farm operation in its first, second, third, fourth or fifth year of agricultural production” (AML, § 301(4)(j), as added by L.2006, c.256; emphasis added). No similar provision applies to a newly established pine tree operation.